Wednesday, October 28, 2009

An important case interpreting the Massachusetts open meeting law comes up for argument before the Supreme Judicial Court on Monday. The case, District Attorney v. Wayland School Committee, presents the question of whether a school committee violated the law when it met in closed session to discuss the performance evaluation of the school superintendent.

(Note: I filed an amicus brief in this case on behalf of the Massachusetts Newspaper Publishers Association.)

The open meeting law requires that all committee meetings be open to the public except those that fall within express exceptions. This case involves the exception that allows a committee to meet in private "to discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual." That italicized phrase is understood to mean that professional competence cannot be the subject of a closed meeting.

Despite that, the trial judge in this case relied on a separate exception to rule that the closed-door meeting was lawful. That exception allows a private meeting to "conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel."

The trial judge reasoned that because the superintendent was compensated pursuant to a written contract, and given that the amount of compensation was to be based, in part, on the evaluation, then the evaluation, itself, was to be considered part of the contract negotiation.

The problem with this reasoning is that it renders meaningless the professional competence exclusion noted above. Professional competence is a nearly universal measure on which employers base employment decisions. If every discussion of professional competence is to be considered a prelude to an employment-related decision, then it could always be discussed in private, under the trial judge's reasoning.

Interest in the case drew amicus briefs not just from the MNPA, but also from the Mass. Municipal Association, the Mass. Association of School Superintendents, and the Mass. Association of School Committees. You can read the briefs at the SJC's site and watch Monday's oral arguments via webcam.

A case that could decide whether the Massachusetts anti-SLAPP statute applies to journalists comes up for argument Monday before the Supreme Judicial Court. The case, Fustolo v. Hollander, involves a libel lawsuit filed by real estate developer Steven C. Fustolo against Fredda Hollander, a reporter for a community newspaper in Boston's North End and a long-time community activist.

Hollander sought to have the lawsuit dismissed under the anti-SLAPP statute, which is designed to protect against the use of litigation to silence a person's "exercise of its right of petition." The right of petition refers to an individual's First Amendment right to address the government with regard to issues of public concern.

A Superior Court judge denied the motion. The judge concluded that Hollander had written the news stories at issue in the lawsuit not "on her own behalf as a citizen" but "in the role of a reporter paid and employed by the publisher of a newspaper." The ruling is at odds with another Superior Court case, Joyce v. Slager, which allowed a newspaper's motion to dismiss a libel case under the anti-SLAPP law.

Those interested in the case can watch the webcast of the arguments before the SJC. You can read the briefs filed by the parties here.

Monday, October 19, 2009

Can a town deny a public-records request on the grounds that the requester still owes money for an earlier request?

No, according to a ruling made by Alan Cote, the Massachusetts supervisor of public records. As reported by the Brockton Enterprise, Cote has decided that Rockland Town Administrator Allan Chiocca was wrong to deny a resident's public records request for the reason that he still owed the town payment for past requests.

"You have failed to provide sufficient justification for withholding these records," Cote told the town administrator.

Sunday, October 18, 2009

Some items in the news this week regarding the Massachusetts open meeting law:

A Cape Cod Times editorial calls for the state legislature to put teeth in the open meeting and public records laws. "Pick up the phone and call your state senator and representative. Let them know that you demand good government that is answerable directly to the people and that you support real sanctions against those public officials who deliberately break the law."

The Worcester Telegram & Gazette files a complaint alleging that the Charlton Board of Selectman violated the open meeting law in its performance evaluation of the town administrator.

The Brockton Enterprise reports that the Rockland town counsel denies there is any validity to a selectman's complaint that a screening committee violated the open meeting law when it recommended a final candidate at its first public meeting.

Friday, October 16, 2009

This week on the legal-affairs podcast Lawyer2Lawyer, we try to sort fact from fiction regarding the Federal Trade Commission's new guidelines on product endorsements and reviews by bloggers. The FTC wants bloggers to disclose free products or payments they receive from companies for reviewing their products. How far do the guidelines reach, what sorts of disclaimers do they require, and how will the FTC enforce them?

To help us sort through these questions, we are joined by two guests with expertise in this area: Eric P. Robinson, staff attorney at the Media Law Resource Center, a nonprofit information clearinghouse that monitors and promotes First Amendment rights in libel, privacy and related fields; and Barry J. Reingold, head of the marketing and advertising practice for the law firm Perkins Coie.

Monday, October 12, 2009

Remember Noonan v. Staples? That was the 1st Circuit decision I described as the most dangerous libel decision in decades. In it, the court upended the bedrock principle of libel law that truth is an absolute defense. It said that even a true statement can be subject to a libel lawsuit if it was said with actual malice.

At issue in the case was an e-mail sent by a Staples executive to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The e-mail said -- truthfully -- that Noonan was terminated after a company investigation determined that he had violated Staples' travel and expense policies.

The 1st Circuit remanded the case to the district court for trial. Reportedly, the trial is now complete and a jury last week rendered its verdict. The jury found no malice on the part of Staples and returned a verdict in the company's favor.

Wednesday, October 07, 2009

The board of selectmen in Charlton, Mass., should be commended for conducting its evaluation of the town administrator in an open meeting. It did not have a lot of choice, as the Telegram & Gazette reports. Complaints filed by the newspaper against the town last year resulted in a ruling by the Worcester County district attorney that the selectmen violated the open meeting law in 2007 and 2008 when it conducted the administrator's evaluations behind closed doors.

One member of the board, however, was not comfortable with the idea of speaking in public about her unsatisfactory evaluation of the administrator. Selectman Kathleen Walker got clearance from the town counsel to meet privately with the administrator to discuss her evaluation.

Tuesday, October 06, 2009

Massachusetts state Sen. Stanley C. Rosenberg of Northampton said today he would file a bill to help save the jobs of newspaper carriers. His statement followed the announcement earlier in the day that Northampton's newspaper, the Daily Hampshire Gazette, and its sibling paper, the Greenfield Recorder, would end their long-standing custom of having boys and girls deliver the newspaper to neighborhood homes.

Rosenberg's announcement said that he began working on the bill after learning that state employment officials had begun classifying newspaper carriers as employees, instead of as independent contractors, thereby requiring newspaper companies to pay their unemployment insurance fees.

Rosenberg’s bill, which has yet to be filed, would more clearly define the role of news carriers within a newspaper company and exempt the companies from state unemployment fees, his announcement said.

"Newspapers are absolutely critical to the advancement of our democracy, and news boys and girls are a part of Americana that I, personally, can’t stand the thought of losing. How many of us first learned the value of work delivering newspapers? These jobs are important for our local young people, and adults alike, and I’m not willing to see them go to big corporations without a fight."

Legislation to address this issue is badly needed. A 2004 change to Massachusetts law eliminated the traditional "right to control" test used to determine whether someone is an employee or an independent contractor. It was replaced with a new standard which required, among other things, that an independent contractor be providing a service that is "outside the usual course of the business of the employer." This makes virtually any freelancer an employee under the law if the freelancer's work has any relation to the business.

Today's announcement from the Gazette said it would shift home newspaper delivery to a national distribution company effective Oct. 26.

"Massachusetts, in a couple of areas, is taking a hard look at independent contractors," Gazette Publisher Jim Foudy said in the article. "They've been making some statements, taking some actions. We believe they're going to say these people need to be employees."

"This is a business decision. We just realized we needed to move on this before we end up finding ourselves with enormous additional costs," Foudy said.